"We go overseas to earn, but our money is being stolen. We need to do something about this." 

– Bijaya Sreshtha, Nepali returnee migrant worker and activist

"We need a break from the cycle of exploitation (of wage theft) and the silence associated with it." 

– Kortornilo Farny, Thai migrant activist

"Wage is the property of workers; we need to create a system for them to reclaim their unpaid dues."

– Sister Lizzy, Indian activist

These statements were made at a conference on access to justice for migrant workers held in Kuala Lumpur on October 2-4. The event was convened by Migrant Forum in Asia to take stock of the Wage Theft campaign. Launched in June 2020 by a large coalition of civil society organisations and trade unions in the Asian region, the Wage Theft campaign aims "to establish an 'Urgent Justice Mechanism' in addressing the plight of millions of migrant workers whose wages have been unjustly withheld by their employers." 

Wage theft is the total or partial non-payment of a worker's remuneration, earned through the provision of labour services, as stipulated in a written or non-written employment contract. It also includes payment below the minimum wage, non-payment of overtime, non-payment of contractually owed benefits, non-negotiated reduction of salaries, and retention of dues upon one's contract termination. 

However, the phenomenon of wage theft is not restricted to these indicators only. Deduction from wages under the pretext of insurance, medical examination, transport costs, skills training and the like is quite common as well. In many instances, workers are promised higher wages but are made to sign a second set of documents upon arrival in the destination countries, often in languages that migrants do not understand. This subjects them to be contractually paid less than what was promised to them. Unauthorised deduction of wages in the guise of imposing penalty to the workers is also common. In many instances, the quality of food and the standard of accommodation are not commensurate with the amount that is deducted from their wages. All these amount to wage theft.

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Left to fend for themselves

One of the major forms of wage exploitation takes place when domestic workers are made to work for long hours (without being paid overtime) and also made to work for the relatives or friends of the employers. Instances are replete when workers are brought under the visit visa and denied wages even though they are made to work during that period. There have been cases when employers or agents paid less than the due wages when they transferred the payment directly to the relatives of the workers in their origin countries. 

The long drawn stagnancy in basic salary is a major factor for migrants receiving meagre end-service benefits as the package in most cases is tied to the basic salary received. Cases are also rampant in which employers illegally deduct the amount they pay to recruitment agencies to procure workers, from their wages. Often, the amount might be equivalent to three to four months' wages of a worker. 

The increasing engagement of mega-employment companies that supply migrant workers to third-party employers, often big companies, and government agencies in the destination countries has become a major source of wage exploitation. Huge segments of workers' wages (allegedly up to 50 percent in cases) are usurped by these mega-companies that essentially work as labour contractors, while companies that benefit from the services of these workers refuse to take any responsibility for that. 

The false promise of remitting unpaid wages made by the employers after a worker leaves the country of employment is yet another form of wage theft. When Covid 19 was at peak, millions of migrant workers were robbed off their unpaid wages and entitlements. The countries of destination have thus far not taken any initiative to make their employers pay due wages to the deprived workers – neither has it been an issue of concern for the countries of origin. 

Instances are not uncommon where employers hold the travel and identity documents of the workers and force them to continue to work even after the end of the contract period. These workers have little option but to comply as they are threatened that their arrear wages and end-service benefits will not be cleared if they do not comply. Under such circumstances, with their status becoming irregular, they become virtually bonded to their employers. Likewise, workers are often subjected to forced return before the expiration of their contracts. This enables their employers not to pay their end-service benefits and return travel costs.

Migrant workers are not spared of being robbed of their wages and due entitlements even after their death. The claims of "natural causes" of deaths are often far from the truth. The use of the term "natural cause" frees the employers from paying compensations for workplace accidents and other responsibilities, and there is little scope for the deceased migrants' families to lodge claims and complaints. The prohibitive legal costs associated with lodging such complaints or claims act as a huge deterrence. Imposing taxes on the compensations is yet another form of wage theft for workers and their families. 

What migrant workers experienced during the peak of Covid-19 across the globe has shed light on this largely ignored plight of the vulnerable workforce. In their fixation to harness remittances, the origin countries did not show much interest in their migrant workforce's lack of access to justice in the destination countries. Surely, they would be interested in the issue if someone could work out the potential increase in the volume of remittances – given the workers were not deprived of their due wages. As Prof Binod Khadria of Jawaharlal Nehru University argued, the damage done due to wage theft is not limited to the migrant workers, but the nation as a whole. "Wage theft is an assault on the concerned country's GDP," he observed. 

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Labour Recruitment to Malaysia: Time to break the never-ending cycle

Lauding the launch of the Wage Theft campaign, the World Bank economist and remittance expert Dilip Ratha stated that if portable pensions and social security benefits can be worked out between states, the international community should talk about access to portable justice. Further reinforcing the argument, Ragunath Kesavan of the Human Rights Commission of Malaysia observed that if national courts can adapt to changed circumstances and make room for virtual hearing for commercial cases, employment matters could be taken up by them. 

Highlighting the severe limitations of the current system, William Gois of Migrant Forum in Asia said in most jurisdictions, migrants lose their residency as soon as their jobs are terminated. How can one pursue their case when they are not allowed to stay, and in the rare cases that they are, they do not have the permission to work? Likewise, while lodging complaints may be free of charge in some jurisdictions, preparing documents for cases requires a lawyer's service, which is expensive. The reticence of employers to be present at the court or honour its decisions and the inability of the court to execute its decisions are the gaping holes in the existing system, Gois noted. 

Pablo Ceriani of the UN Committee on Migrant Workers called for building firewalls to ensure that workers are protected under the labour law independent of their immigration status. Ryszard Cholewinski of the International Labour Organization (ILO) underscored the need for setting up fast-track alternative dispute resolution mechanisms for small claims, and protection for complainants and whistleblowers against retaliation. 

Covid-19 has exposed the acute vulnerability of Asian migrant workers, particularly their lack of access to justice in destination countries. The power imbalance between the employers and the workers, and the absence of an enabling environment of freedom of association and the right to organise, reinforced by indifference of the authorities of both the countries of origin and destination, have created a situation of systemic injustice. It is time the states took meaningful measures to protect the goose that lays the golden eggs. 

Dr CR Abrar is an academic and human rights expert.